CHAPTER XIII
FORMALITIES IN JUDICIAL PROCEDURE
The sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff"s officer in attendance. In many States the ancient English style of expression has been preserved, which dates back to the Norman conquest, and begins with a cry of "_Oyez, Oyez, Oyez_." These proclamations are often closed with such words as (for instance) "G.o.d save the Commonwealth of Rhode Island and Providence Plantations." The adjournment from day to day is announced in a similar but less elaborate manner.
Many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months.
In a number of States such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. No regular chaplain is employed, and one term may be opened by a Presbyterian minister and the next by a Roman Catholic priest.
In some of the smaller counties in Ma.s.sachusetts the sheriff or his deputy daily escorts the judge to and from the court house, in accordance with what has been the usage from colonial times.
Formerly it was the practice in New England to ring the bell of the princ.i.p.al church in the town daily at the hour when court opened.[Footnote: This was continued in Connecticut until the last quarter of the nineteenth century.]
In many courts it is the custom for all present to rise on a signal from the sheriff or marshal when the judge enters the court room to take his seat on the bench. This is the general usage in the federal courts and in the appellate courts of States. In the latter a formal proclamation is often made by the sheriff to announce the coming of the judicial procession, concluding with a "G.o.d save the Commonwealth." In some States formal bows are interchanged between bench and bar as the judges take their places, after which the court is opened by the customary proclamation and the bar then requested by the judges to resume their seats.
The rules of official precedence are strictly observed in appellate courts. In entering the court room the chief justice advances first, and his a.s.sociates follow in the order of the dates of their commissions, the senior a.s.sociate justice taking his seat on his right, the second in seniority on his left, the third in seniority on the right of the senior a.s.sociate justice, and so on; the junior in commission occupying the end seat on the left of the bench.
The members of the Supreme Court and of the Circuit Court of Appeals of the United States have always worn black silk gowns.
The members of the Supreme Court of South Carolina have worn them from a time antedating the Revolution. The New York Court of Appeals in 1877, at the request of the bar, preferred through David Dudley Field, adopted the practice,[Footnote: In 1903 it was extended to _nisi prius_ courts held by justices of the Supreme Court.] and the same thing has since been done by appellate courts in several other States. In one of these, Ma.s.sachusetts, they had been worn in the colonial era. About 1760, Chief Justice Hutchinson introduced gowns and ca.s.socks there on the Supreme bench, and also gowns, bands, and tie-wigs for lawyers who were admitted as barristers of the Superior Court.[Footnote: "Life and Works of John Adams," II, 133, note, 197.] The latter soon abandoned these, but gowns were retained by the judges until 1793.[Footnote: Publications of the Colonial Society of Ma.s.sachusetts, V, 22; Amory, "Life of James Sullivan,"
I, 261, note.] In North Carolina gowns and bands were worn by the members of the Supreme Court in 1767.[Footnote: Proceedings of the Colonial Society of Ma.s.sachusetts, VI, 389.] In New Jersey, the bar were at one time required to a.s.sume them by a rule of the Supreme Court, but the rule was vacated in 1791.
At the first opening of the Supreme Court of the United States, in 1790, Chief Justice Jay wore a gown with salmon-colored facings on the front and sleeves, of the style then used by Doctors of Laws created by the University of Dublin, from which he had received that degree.[Footnote: 134 U. S. Reports, Appendix.] It has not since, in that or any other American court, been the practice for judges to wear academic hoods or other decorations on the bench.
Counsel, in addressing the court, rise and begin with "May it please the Court," "May it please your honor," or, before a court in bane, "May it please your honors." The term "you" would never be used to a judge on the bench; but that of "your Honor" would be employed.
Great pains is taken by the officers in attendance to prevent anything on the part of the audience that could in any way disturb the proceedings, such as loud conversation or unnecessary moving from place to place.
There is a good deal of antique form in the manner in which, under the direction of the clerk, prisoners are arraigned and juries are made up or "impanelled" for the trial of a cause.
In charging a jury, the judge commonly rises and the jury do the same.
When sentence is p.r.o.nounced on a conviction for crime the prisoner is required to rise. In cases of capital offenses, he is asked by the judge if he has anything to say why judgment of death should not be p.r.o.nounced against him. It is highly improbable at that stage of the cause that he should have anything to urge which has not been already considered, but the ancient English practice in this respect is still followed, for it is not absolutely impossible that something may have occurred since the verdict that would affect the judgment.
CHAPTER XIV
TRIAL COURTS FOR CIVIL CAUSES
The great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. It also has its seat in the trial courts of the States, for not only is the judicial power of the United States confined by the Const.i.tution within narrow limits, but these have been made still narrower by the action of Congress from time to time.
Most lawsuits never get to trial. The defendant generally has no defense, and is well aware of it. The suit is brought to obtain security or force a settlement. He employs no lawyer and lets things take their course. The result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court a.s.sumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. On the other hand, the plaintiff often does not care for a judgment. He has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. In such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit.
In some States the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff"s claim. In others this is not required, and such a statement is only furnished when specially ordered by the court. If the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. Occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. Their form is now generally regulated by statutes, and is much the same in most of the States, being based upon a system known as "Code Pleading," which originated in New York about the middle of the nineteenth century. It is simpler and less technical than the system under the common law which it replaced.
If the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. Then, if he a.s.serts that the plaintiff on his own showing has no case, or if the plaintiff a.s.serts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. When, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount.
In this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. This was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. In many States, however, the objections must always be particularized. In England demurrers are no longer used. Her Judicature Act of 1873 put an end to the common law system of pleading, reconst.i.tuted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. One of their orders, pa.s.sed in 1883, abolished demurrers. In place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. American lawyers are not satisfied with the reasons which led to this change. They were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. The English judges are few and able. Such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the United States.
Our trial courts are now generally held by a single judge. Until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. One of them would be a lawyer and the others not.[See Chap. VIII.] In cities the two side judges were generally aldermen. A tribunal thus const.i.tuted is better adapted in some respects to trying questions of fact than a single judge. It is a jury of three acting by a majority. But for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. In most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his a.s.sociates. Occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. The expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. It naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary.
We have not the need of several judges to hold a trial court, which is felt in many countries. They use them for a purpose which our juries supply. For similar reasons Americans have not seen any occasion for organizing special courts, such as are the German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to try special cla.s.ses of causes. A jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy.
Petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. In some States he can summon in a jury of six and leave the facts to their determination. The pleadings before him are usually in the same form as in the higher courts.
In jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. All questions of pure law are decided by the judge alone. All questions of pure fact are decided by the jury alone. All questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circ.u.mstances which they may find to have existed. The judge also has a large discretionary power in minor matters arising in the course of the suit. It is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced.
No countries in the world have so artificial a set of rules of evidence as England and the United States. This is because in no other country is the right to a jury trial so extensive. Many of these rules date back to the early history of the English common law. It was a time of general illiteracy. The ordinary juror could not read or write. His powers of reasoning and discrimination had had little or no cultivation. It was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. It was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. But while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. A jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial.
Much that in other countries is helpful in reaching a just conclusion is in this manner shut out in American courts. A man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. The person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. Before the trial the witness of the act dies. He was the sole witness. There is no other testimony to be had. Under our system of practice, those to whom the statement was made cannot be allowed to testify to it. Such testimony would be "hearsay." It would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. The law of evidence says that they ought not to be perplexed by questions upon questions.
The tendency of American legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. The common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a G.o.d, or any witness having a pecuniary interest, in the event of the cause. An atheist or an agnostic could not testify. The plaintiff and the defendant could not. These restrictions have been almost everywhere repealed.
The trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repet.i.tion, and on the other to get out the truth and nothing but the truth. He has similar authority to restrain the arguments of counsel within reasonable limits.
A trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. If so, he may have an opportunity to correct it at a later stage of the proceeding. He has admitted evidence which should have been excluded. In his charge to the jury he may instruct them to disregard it, and his error will thus be cured. He has excluded evidence which should have been admitted. Before the case is closed he can change his ruling and allow it to come in. But so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. Counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. Their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court.
Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o"clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.]
The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed.
The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus:
John Doe Smith
vs.
Richard Roe Jones.
Doe is here the plaintiff and Smith is the attorney who brought the suit for him. Roe is the defendant and Jones is the attorney who appears in his behalf. If there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[Footnote: Another book is kept for criminal cases, which are docketed as "The State _v._ John Doe," in others as "The People _v._ John Doe," and in the federal courts as "The United States _v._ John Doe."] From this docket trial lists are made up for each term or session of court. a.s.signments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. Several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so a.s.signed the parties must be prepared at their peril to appear and proceed at any minute when called upon.
In courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law.
When a case is called for trial the plaintiff"s counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. Sometimes the pleadings on both sides are read at length. The plaintiff"s witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. The testimony of witnesses whose attendance cannot be had, which may include any living out of the State (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. In such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories.
Depositions are received in the same manner and subject to the same objections as oral testimony. In cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner."
When the plaintiff"s case has been thus presented, his attorney announces that he "rests." The defendant"s attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff"s case as presented "in chief," by reb.u.t.ting testimony. Should there be any new point brought out in the latter which the defendant had not antic.i.p.ated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that.
At the close of the evidence the plaintiff"s counsel argues for his client; the defendant"s counsel replies; and the plaintiff"s counsel is then heard in answer to anything which has been said in behalf of the other side.