CHAPTER XX

THE JUDICIARY

I. EVOLUTION OF THE JUDICIAL DEPARTMENT

367. The evolution of state justice. The transition from private vengeance to public judicial authority has taken place through several fairly well-defined phases.

The earliest notion of justice, as distinct from mere indiscriminate revenge, that we find among the Teutonic peoples is, undoubtedly, the blood feud. Barbarous as such an institution appears to us, we have but to think for a moment, to realize its immense importance, as a step in human progress. A man receives a wound from another, is perhaps killed. Instantly the passion for slaughter awakes. All who are in any way interested in the dead man those who worshiped his gods or fought by his side, are eager to avenge his death on any person who may be supposed to be connected with his murderer. General carnage is the result; no man's life is safe. But, if it can once be established, that the right of vengeance belongs only to a limited circle of the dead man's relatives, and may be exercised only against the immediate relatives of the offender, the area of vengeance is substantially narrowed, the evil of the deed proportionately decreased. This is the work of the blood feud.

To the blood feud, then, succeeds the wer or money payment as compensation for the injury inflicted. Here again we are in the dark as to the origin of the change, which may, possibly, have taken place before the introduction of coined money into the Teutonic world, but was probably almost contemporary with that event. It is, of course, highly probable that Christianity, with its hatred of bloodshedding, may have had much to do with the substitution of payment for corporal revenge. . . . But two points in connection with the system of pecuniary compositions require careful attention. To begin with, it seems to have been a purely voluntary system. It is difficult, in fact, to see how the Clan, an organ destitute of anything like an executive machinery, could have enforced the acceptance of the wer, without bringing down upon itself that state of general disturbance which the wer was designed to avoid. . . .

In the second place, it was always admitted that there were some offenses for which the money payment could not atone. . . . For these the offender is banished, and his goods forfeited.

These are our two starting points for the history of State justice. The king comes to the help of the Clan by compelling the avenger to accept the wer and by compelling the offender to pay it. He likewise takes upon himself the punishment of bootless crimes.

But the coöperation of the king in the enforcement of the wer brings about one very important by-result. The king's officer does not work for nothing. . . . And so we get the beginning of that double element in legal proceedings- the claim of the Party and the claim of the State which has had so much influence on legal development.

368. Evolution of forms of punishment. The following extract indicates the fundamental changes that have taken place in the method and purpose of punishment:

(1) The first period is that of revenge. Penalty in all its forms was savage and cruel. Man's nervous system was in primitive times less highly organized and endured pain more easily; human sympathy was lacking and belief in the sacredness of human life hardly existed. Punishment was ruthless, often out of all proportion to the crime, and frequently involved the innocent with the guilty, under the ancient theory of collective responsibility either of family, clan, or fraternity.

(2) As notions of justice developed in men's minds, the desire for revenge became modified into the principle of retaliation. Every offense was to be atoned for by a similar punishment. It was the period of lex talionis, an eye for an eye, a tooth for a tooth, no more, no less. This system also was cruel, but yet in its attempt to secure justice it was an improvement over the vindictive system of the earlier stage.

(3) With the rise of personal property there came a strong tendency to atone by the payment of a fine for all but the worst crimes, blood penalty being exacted only from the worst criminals or from those who were unable to pay fines. Under this system there was a carefully graded list of offenses, each valued at a particular fine, varying in amount with the social rank of the injured person. The fine in early times was paid partly to the injured and partly to the state. Confiscation of property is simply a variation of this form of punishment. With the development of slavery, punishment for crime might in default of fine result in the sale of the criminal, and perhaps of his family also, into slavery for a term of years or for life. As slavery disappeared, this form of punishment survived in sentences that condemned men to labor

in mines or on governmental works, to serve in the army or navy, or as servants to private citizens who employed this convict labor on plantations or in various industries.

(4) Another stage of punishment developed when the courts undertook to deter men from crime by the infliction of cruel punishments. This was effected by imprisonment in noisome dungeons, by burning, mutilation, whipping, branding, and torture developed to its highest pitch by human ingenuity. . .

In medieval Europe, as well as throughout the Orient, a belief in the efficacy of torture resulted in its use in the case of persons strongly suspected of crime, against whom, however, there was insufficient evidence to convict, or whose evidence it was thought might inculpate others. These persons were put to the torture on the theory that persons suffering bodily anguish will tell the truth. . . . A peculiar form of punishment developed in many parts of the world and in early Europe as the result of religious ideas. When men desired to do justice and yet realized how imperfect judicial machinery was in the detection of crime, it occurred to them that the guilt or innocence of the accused might safely be left with God. In consequence there developed a system of ordeals, oaths, and judicial combats, the outcome of which determined the punishment or acquittal of the accused. . . .

The penal systems of the nineteenth century present a complex of many former stages. Hanging for murder is a form of lex talionis. Hanging for other crimes and solitary confinement aim to deter the commitment of such crimes. The system of fines carefully graded to fit each offense is still in vogue but reserved for minor crimes. More serious offenses are usually punished by imprisonment, not so much to deter others from crime as to segregate criminals from social life.

369. The people and the courts. The strong support of public opinion behind the courts, especially in time of peace, in contrast to the frequent fear of executive or legislative power, is worth noting.

Usually in this country and in most modern states, the judges have been strongly inclined to conserve the rights and privileges of the common people as opposed to the executive or to the legislature, which at times seem inclined to encroach upon the rights of the people. On that account the judges have usually in both ancient and modern times enjoyed special honor and respect from the citizens as upholders of right and justice. It is, therefore, considering these facts, and I think the facts are undeniable, — natural that we should expect that in times of peace our judges will find their influence strengthened as compared with

-

the power of the executive and of the legislature. In times of emergency, such as that of war, the executive has the opportunity, as has been said, to strengthen his power at the expense of the courts and of the legislature. But in times of peace, as the course of events normally move, the courts in their power of interpreting the law, overruling the legislature, controlling the executive, become the conservators of the rights of the people, and the people seeing that their power is strengthened by the judges, often make it evident that in times of peace they hold the courts to be the most trusted if not the most powerful branch of government.

II. FUNCTIONS AND REQUISITES OF THE JUDICIARY 370. The judicial function. The general nature of the judicial power in modern states may be indicated as follows:

The chief function of the judicial department is to interpret the law and to apply its penalties and remedies in all cases brought before the courts for their decision. This power is fundamental to the successful workings of government, which by nature is coercive and must have authority to enforce by penalty its decisions. Such a power is essentially executive and was originally wielded by the elders or, in earlier states, by the king. In modern states judicial authority has differentiated into two great branches, one exercised chiefly by the executive department and the other by a separate department devoted to judicial functions only. This latter department is concerned chiefly with alleged infractions of the law by private persons and with disputes between private persons in regard to property rights. That part of the judicial function residing in the executive department is concerned mainly with the enforcement of discipline in the army and navy, in the civil service, and in the settlement of disputes arising under administrative rules.

371. Jurisdiction of courts. Courts can decide questions only when cases over which they have authority are properly brought before them.

The functions of the judicial department are discharged by courts created by law, and courts can only decide cases which are properly brought before them. A case brought before a court is said to be within the jurisdiction of the court if it is one which by law the court is authorized to try, and which, in the particular instance, is so submitted to it that it may be tried. It is often said that, to authorize the determination of a case in a court, the court must have jurisdiction of

the subject matter and of the parties. But by such a statement is simply meant that the case must be one of a class of cases which by law the court has authority to determine; and that the particular case is brought by one having the right to sue in the court, and that the party against whom a decision is asked is served with notice or otherwise brought into court in such way that he is bound to present his defense.

372 Methods of choosing judges in the United States commonwealths. The relative advantages of the different methods used in choosing judges in the commonwealths of the United States are thus stated in a recent book:1

There has been considerable controversy as to which of the three methods of choosing - namely, selection by the legislature, the governor, or popular vote is the most advantageous to the cause of justice. It is generally agreed that the first is not at all desirable; the choice is only too often made by log-rolling tactics when it is intrusted to the legislature. On the other hand, there is much to be said on the merits of the other two methods popular election and appointment by the governor. The friends of the former practice emphasize the fact that choice by the people seems to be the only democratic way of selecting important officials, for appointment by the governor renders the judges too independent of the popular will and tends to make them arbitrary. They point out also that, in the case of local judges, the people of the district are likely to know more about the qualifications of the candidates than the governor who is obliged to depend on recommendations of third parties that is, on the recommendations of a local political machine. Finally, the champions of the elective system point to the fact that on the whole it has worked successfully and that excellent judges have been obtained under it. . . . Finally, the advocates of popular election point out that in so far as judges have the power to declare laws void their functions are political and, therefore, they should not be removed from popular control.

To offset these arguments, those who favor appointive judges say that where good judges have been obtained, they have been secured in spite of popular election, not because of it. Massachusetts, whose judges have always been distinguished for their high character and legal learning, is always cited as the state in which the appointive system has proved eminently successful. It is contended that the people do not have the capacity to pass upon qualifications required for a successful judge and often select the most popular man rather than the one most fit. Making 1 Copyright, 1910, by The Macmillan Company.