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The State Constitutions differ fundamentally from that of the United States in respect to the nature of the judicial establishment. Each of the States possesses all judicial powers belonging to any sovereignty, except so far as the people of the United States may have provided otherwise in the Constitution of the United States.

The State Constitutions do not define those powers. They simply commit them to certain courts and officers. Their general language is that the judicial power is vested in a Supreme Court and such other inferior courts as may be created by law. On the other hand, the Constitution of the United States defines the judicial powers of the United States exactly and within a somewhat narrow range, investing the courts of the United States with those powers and no others. Hence the States require a much more complicated and extensive judicial establishment than do the United States, for not only is the great mass of litigated cases throughout the country to be disposed of by State courts, but they must also pass upon by far the greatest variety of legal questions.

In each State there is one appellate court of last resort[Footnote: See Chap. XIX.] and several courts for the trial of original causes. Local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $50 or $100), which do not affect title to land. Then come County Courts (often styled Courts of Common Pleas or District Courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken. These generally have both civil and criminal jurisdiction.

A higher court, which may be styled a Superior Court, or Circuit Court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the County Courts in such case having a limited jurisdiction in these respects.

Municipal courts are to be found in all considerable cities and in many of the lesser municipalities, such as towns and boroughs. City Courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. They frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[Footnote: See Goodnow, "City Government in the United States," Chap. IX.]

For the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many States special courts, known as Courts of Probate, Surrogate's Courts, or Orphans' Courts, and Courts of Insolvency. In others these functions belong to the County Courts.

The early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. It was a method wasteful of time and money. In Massachusetts it survived for their highest _nisi prius_ court until 1804. In many States it endured much longer for County Courts.

County Courts in some States are courts only in name, except, perhaps, for some very limited purposes. Their real functions are administrative. Some or all of those who hold them are often styled commissioners, and their principal duties are to manage the general business affairs of the county.[Footnote: See Constitution of West Virginia, Amendment of 1880; Constitution of Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903 indicates that those in that State are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the County Courts "on all legal questions that may arise." In Virginia, County Courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. These magistrates nominated their own successors to the Governor, who almost never refused to commission the person so recommended. The court also nominated the officers of militia below the rank of General, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. However clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _"amci curiae"_ whenever any doubtful question of law chanced to arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378; Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where County Courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[Footnote: McMaster, "History of the People of the United States," III, 154.]

The Constitutions of the States generally require the existence of a Supreme Court of last resort, and often specify also by name one or more of inferior jurisdiction. Such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. The power to establish implies a power to limit and to destroy. A tribunal created by a Constitution, with functions defined in the Constitution, is, as to these and as to its independence of existence and action, beyond legislative control.

The Republicans in Congress were within their rights when, in 1802, they repealed the act passed by the Federalists the year before to create a system of Circuit Courts. Those of Massachusetts were within theirs when, in 1811, they abolished the ancient Court of Common Pleas of that State and created a new "Circuit Court," with fifteen judges, to take its place. Both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old Federalists. Why they did not has been frankly stated by one of them in his account of Governor Gerry's administration:

With the Supreme Judicial Court the party did not interfere. In respect for the authority of the Constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. The result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[Footnote: Austin, "Life of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. Of these there are generally several in each town, having jurisdiction over the whole county. Some may be lawyers. None need be, and few are. Any one of them can try cases. Which of them shall try any particular case is left to be determined by the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[Footnote: See McVeigh _v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic Reporter, 701.] Such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. But in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. If the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. In most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. Some justices rarely give any other judgment. Many lawyers bring all their cases before one justice, and seldom fail of success.

In 1903, a justice of the peace in one of our largest cities resigned his office and made his reasons public. They were that no one could afford to hold it who was not willing to stoop to unworthy practices. Lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. They expected the justice of the peace whom they favored to favor them. One way was by making them a discount on his legal fees. There was a competition among the justices for business on these terms, and the lowest bidder generally got it. Blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys.

A system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. That relief, however, is expensive. Judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can.

The natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. Better men could thus be had and independence of action promoted. That this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. The system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it.

In a few States a sharp line of division is drawn between courts of law and courts of equity. This distinction was inherited from England, though it has been for most purposes abolished there by the Judicature Acts of 1873 and 1875. It originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. The King was accustomed to refer requests for such action on his part to his principal secretary and councillor. The next step was to address the request directly to this officer, who was styled the Chancellor. If a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the Chancellor could compel him to desist. If the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the Chancellor could bring him to account, although the common law would give no remedy. Soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the Chancellor, or a case in chancery. Relief was given because it was equitable to give it, and so it was called relief in equity. The jurisdiction expanded. Wherever there was a right, but no adequate remedy at law, the Court of Chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice.

The Chancellor had often been an ecclesiastic. He was apt to be more familiar with canon law and civil law than with the common law. The justice which he administered came from the Crown, not from the people. The people spoke through a jury, called in law language "the country." The Chancellor spoke for himself. If he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it.

The result came to be that for several hundred years, embracing the whole colonial period, England had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. Those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. Equity also could prevent wrongs, while law could only punish them.[Footnote: See Chap. XX.] It was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. Many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court.

In the American colonies, and for many years in the States which succeeded them, these distinctions of procedure were generally observed.[Footnote: In Pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. See Myers _v._ South Bethlehem, 149 Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In some there were, in some there still are, separate courts of equity held by a Chancellor, aided, if necessary, by Vice-Chancellors. In others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law.

Such a system is intrinsically absurd. It has been maintained by whatever States yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. All our State Constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. That is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief.

In most of our States and Territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. This reform in procedure was largely due to the labors of David Dudley Field, and became general throughout the country during the last half of the nineteenth century. The result has been that separate courts of equity are now to be found only in a few States.

Congress has made use of the State courts in certain cases as part of the machinery of the federal government. While by the Constitution "the judicial power of the United States" can only be vested in the courts of the United States, the phrase as thus used refers only to the power of judging causes in courts of record. State courts and magistrates can therefore be given jurisdiction by Congress over any acts in aid of the functions of the United States, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. They have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the United States, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[Footnote: Robertson _v._ Baldwin, 165 U. S. Reports, 275.]

State courts also have jurisdiction over any civil action to enforce a right given by the laws of the United States, unless Congress has otherwise provided. They constitute together with the federal courts one general judicial system for the whole country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports, 130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59 Northeastern Reporter, 435.]

Almost all American courts are known as "courts of record." A court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. For this purpose most courts are furnished with a recording officer, called the clerk. His record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. If there is any error in it, it can only be shown on a direct proceeding brought to correct it.

Justices of the peace, when authorized to try causes, act only in small matters and in a summary way. In most States they are not, when exercising this function, deemed to constitute a court of record. Nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[Footnote: Hutkoff _v._ Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.] unless there is a statute or local practice giving such notes or minutes the effect of a record.

A court of record has inherent power to preserve order in proceedings before it[Footnote: See Chap. XX.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. By statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. He also executes such processes as under the practice of the court may be directed to him. Witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments.