1911 Encyclopædia Britannica/American Law

by Simeon Eben Baldwin

AMERICAN LAW. The laws of the various states and territories of the United States rest at bottom on the same foundation as those of England, namely, the English common law as it existed at the beginning of the 17th century. (See English Law.) The only exceptions worth noting are to be found in the state of Louisiana, the territory of New Mexico, and the acquisitions following the Spanish war of 1898. Those derive most of their law from France or Spain, and thus remotely from the principles of Roman jurisprudence. A part also, but comparatively a small part, of the law of Texas, Missouri, Arizona and the Pacific states comes from similar sources. The United States as a whole has no common law, except so far as its courts have followed the rules of English common-law procedure in determining their own. Most of the positive law of the United States comes from the several states. It is the right of each state to regulate at its pleasure the general relations of persons within its territory to each other, as well as all rights to property subject to its jurisdiction. Each state has also its own system of adjective law. The trial courts of the United States of original jurisdiction follow in general the practice of the state in which they sit as to procedure in cases of common-law character. As to that in equity, or what means the same thing, chancery causes, they follow in general the practice of the English court of chancery as it existed towards the close of the 18th century, when the original Judiciary Act of the United States was adopted. The public statutes of the United States are to be found in the Revised Statutes of 1873, and in the succeeding volumes of the Statutes at Large, enacted by each Congress. Those of each state and territory are printed annually or biennially as they are enacted by each legislature, and are commonly revised every fifteen or twenty years, the revision taking the place of all former public statutes, and being entitled Revised Statutes, General Statutes, or Public Laws. The private or special laws of each state, so far as such legislation is permitted by its constitution, are in some states published separately, and made the subject of similar compilations or revisions; in others they are printed with the public session laws. American courts are often given power by statute to make rules of procedure which have the force of laws. Municipal subdivisions of a state generally have authority from the legislature to make ordinances or by-laws on certain subjects, having the character of a local law, with appropriate sanctions, commonly by fine or forfeiture.

Law in the United States has been greatly affected by the results of the Civil War. During its course (1861–1865) the powers of the president of the United States may be said to have been re-defined by the courts. It was its first civil war, and thus for the first time the exercise of the militaryThe XIVth Amendment. authority of the United States within a state which had not sought its aid became frequent and necessary. Next followed the amendments of the Constitution of the United States having for their special purpose the securing beyond question of the permanent abolition of slavery and the civil and political rights of the coloured race. At the outset the Supreme Court of the United States was inclined to treat them as having a very limited operation in other directions. One of the provisions of the XIVth Amendment is that no state shall deny to any person within its jurisdiction the equal protection of the laws. The benefit of this guarantee was claimed by the butchers of New Orleans, in contending against a monopoly in respect of the slaughter of cattle granted by the state of Louisiana to a single corporation. Their suit was dismissed by the Supreme Court in 1873, with the expression of a doubt whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, would ever be held to come within the purview of the provision in question.^[1] The chief justice and three of his associates dissented from the judgment, holding that the XIVth Amendment did protect the citizens of the United States against the deprivation of their common rights by state legislation.^[2] Public sentiment supported the view of the minority, and it was not long before changes in the personnel of the court, occurring in common course, led it to the same conclusions. The protection of the XIVth Amendment is now invoked before it more frequently than is that afforded by any other article of the Constitution. In one of its recent terms twenty-one cases of this nature were decided.^[3] Very few of them related to the negro. Since the decision in the Slaughter-House Cases, the controversies as to the constitutional rights of the negro have been comparatively infrequent, but there has been a great and steadily increasing number in all the courts in the country, involving questions of discrimination in favour of or against particular individuals, or of changes affecting the rights of parties in the accustomed forms of judicial procedure.

Down to 1868, when this amendment was adopted, it was, as to most matters, for the state alone to settle the civil rights and immunities of those subject to its jurisdiction. If they were to be free from arbitrary arrests, secure in liberty and property, equal in privilege and entitled to an impartial administration, it was because the constitution of the state so declared. Now they have the guarantee of the United States that the state shall never recede from these obligations. This has readjusted and reset the whole system of the American law of personal rights.^[4]

The Supreme Court of the United States has used the great power thus confided to it with moderation. Its general rules of decision are well stated in these words of Mr Justice Brown, found in one of its recent opinions:—

“In passing upon the validity of legislation, attacked as contrary to the XIVth Amendment, it has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that in some of the states methods of procedure, which at the time the constitution was adopted were deemed essential to the protection and safety of the people or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests; while, upon the other hand, certain other classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection. Even before the adoption of the constitution, much had been done toward mitigating the severity of the common law, particularly in the administration of its criminal branch. The number of capital crimes, in this country at least, had been largely decreased. Trial by ordeal and by battle had never existed here, and had fallen into disuse in England. The earlier practice of the common law, which denied the benefit of witnesses to a person accused of felony, had been abolished by statute, though, so far as it deprived him of the assistance of counsel and compulsory process for the attendance of his witnesses, it had not been changed in England. But, to the credit of her American colonies, let it be said that so oppressive a doctrine had never obtained a foothold there. The 19th century originated legal reforms of no less importance. The whole fabric of special pleading, once thought to be necessary to the elimination of the real issue between the parties, has crumbled to pieces. The ancient tenures of real estate have been largely swept away, and land is now transferred almost as easily and cheaply as personal property. Married women have been emancipated from the control of their husbands, and placed upon a practical equality with them with respect to the acquisition, possession and transmission of property. Imprisonment for debt has been abolished. Exemptions from executions have been largely added to, and in most of the states homesteads are rendered incapable of seizure and sale upon forced process. Witnesses are no longer incompetent by reason of interest, even though they be parties to the litigation. Indictments have been simplified, and an indictment for the most serious of crimes is now the simplest of all. in several of the states grand juries, formerly the only safeguard against a malicious prosecution, have been largely abolished, and in others the rule of unanimity, so far as applied to civil cases, has given way to verdicts rendered by a three-fourths majority. This case does not call for an expression of opinion as to the wisdom of these changes, or their validity under the XIVth Amendment, although the substitution of prosecution by information in lieu of indictment was recognized as valid in Hurtado v. California, 110 U.S. 516. They are mentioned only for the purpose of calling attention to the probability that other changes of no less importance may be made in the future, and that while the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and that the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to amend their laws so as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day Magna Carta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees, as they arise.”^[5]

The Civil War deeply affected also the course of judicial decision in the southern states. During its progress it engaged the attention of a very large part of the population, and the business of the courts necessarily was greatly lessened. Upon its close political power passed, for a time, into new hands, and many from the northern and western states took prominent positions both at the bar and on the bench. The very basis of society was changed by the abolition of slavery. New state constitutions were adopted, inspired or dictated by the ideas of the North. The transport system was greatly extended, and commerce by land took to a large extent the place formerly filled by commerce by navigation. Manufacturing came in to supplement agricultural industry. Cities grew and assumed a new importance. Northern capital sought investment in every state. It was a natural consequence of all these things that the jurisprudence of the South should come to lose whatever had been its distinctive character. The unification of the nation inevitably tended to unify its law.

An important contribution towards this result was made by the organization of the American Bar Association in 1878. Of the fourteen signers of the call for the preliminary conference, five were from the southern states. Its declared objects were “to advance the The Bar Association.science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the Union, uphold the honour of the profession of the law, and encourage cordial intercourse among the members of the American Bar.”

Largely through its efforts, the American law schools have taken on a new character. The course of study has been both broadened and prolonged, and the attendance of the students has increased in full proportion to the additions to the facilities for obtaining a more thorough training in the Law schools.profession. When the association commenced its labours, those studying law in the offices of practising lawyers very largely outnumbered those found in the law school. The proportion is now reversed. During the year 1900, for instance, the state board of law examiners in New York examined 899 applicants for admission to the bar of that state. Of these all but 157 had received their legal education wholly or in part at a law school.^[6] In 1878 few law schools had adopted any system of examination for those desiring to enter them. Such a requirement for admission is now common. In only one school were opportunities then afforded for advanced studies by graduate students with a view to attaining the doctorate in law. Courses of this description are now offered by several of the university schools.

A more scientific character has thus been taken on by American law. It is noticeable both in legal text-books and in the opinions of the courts of last resort. In the latter precision of statement and method in discussion are invited by the uniform practice of preparing written opinions. The original Reports.practice of reading these from the bench has been generally discontinued. They are simply handed down to an official reporter for publication, which is done at the expense of the government by which the court is commissioned. With the judicial reports of each state the lawyers of that state are required to be familiar; and this is rendered possible, even in the larger ones, by state digests, prepared every few years by private enterprise. Outside of the state their circulation is comparatively limited, though sets of all are generally found in each state library, and of many in the Bar libraries at the principal county seats. The private libraries of lawyers in large practice also often contain the reports of adjoining and sometimes those of distant states as well as those of their own and of the Supreme Court of the United States. The decisions of one state, however, are now best known in others through unofficial reports. One large publishing concern prints every case decided in the courts of last resort. They are published in several distinct series, those, for instance, coming from the northern Atlantic states being grouped together as the Atlantic Reporter, and those from the states on the Pacific coast as the Pacific Reporter. Another house has published a compilation professing to give all the leading American cases from the first to the latest volume of reports. Another makes a similar selection from the decisions of each year as they appear, and publishes them with critical annotations. There are also annual digests of a national character, comprehending substantially all American cases and the leading English cases reported during the preceding year.

These various publications are widely diffused, and so the American lawyer is enabled, in preparing for the argument of any cause involving questions of difficulty, to inform himself with ease of such precedents as may apply. A court in Texas is thus as likely to be made acquainted with a decision in Maine or Oregon as with one in any nearer state, and in the development of American law all American courts are brought in close touch with each other.

This tendency has been advanced by the steady growth of codification. That is beginning also to serve to bring English and American law nearer together in certain directions. A Negotiable Instruments Act, promoted by the American Bar Association and prepared by a English and American law.conference of commissioners appointed by the several states to concert measures of uniform legislation, has been adopted in the leading commercial states. It is founded upon the English “Chalmers’s Act,” and the English decisions giving a construction to that have become of special importance. The acts of parliament known as the Employers’ Liability Act and the Railway and Canal Traffic Act have also served as the foundation of similar legislation in the United States, and with the same result. Modern English decisions are, however, cited less frequently in American courts than the older ones; and the older ones themselves are cited far less frequently than they once were. In the development of their legislation, England and the United States have been in general harmony so far as matters of large commercial importance are concerned, but as to many others they have since 1850 drawn apart. Statutes, at one point or another, probably now affect the disposition of most litigated causes in both countries. Their application, therefore, must serve more or less to obscure or displace general principles, which might otherwise control the decision and make it a source of authority in foreign tribunals. The movement of the judicial mind in the United States, and also its modes and form of expression, have a different measure from that which characterizes what comes from the English bench. American judges are so numerous, and (except as to the Supreme Court of the United States) the extent of their territorial jurisdiction so limited, that they can give more time to the careful investigation of points of difficulty, and also to the methodical statement of their conclusions. Whatever they decide upon appeal being announced in writing, and destined to form part of the permanent published records of the state, they are expected and endeavour to study their words and frame opinions not only sound in law but unobjectionable as literary compositions.

The choice of American judges, particularly in the older states, has been not uninfluenced by these considerations. Marshall, Bushrod Washington, Story, Kent, Ware, Bradley, and many of their contemporaries and successors, were put upon the bench in part because of their legal scholarship and their power of felicitous expression. Hence the better American opinions have more elaboration and finish than many which come from the English courts, and are more readily accepted as authorities by American judges. But the great multiplication of reports has so widened the field of citation as in effect to reduce it. Each of the larger and older states has now a settled body of legal precedent of its own, beyond which its judges in most cases do not look. If a prior decision applies, it is controlling. If there be none, they prefer to decide the case, if possible, on principle rather than authority.

While the state courts are bound to accept the construction placed upon the Constitution and laws of the United States by the Supreme Court of the United States, and thus uniformity of decision is secured in that regard, the courts of the United States, on the other hand are as a rule obliged to accept in all other particulars the construction placed by the courts of each state on its constitution and laws. This often gives a seeming incongruity to the decisions of the Supreme Court of the United States. A point in a case coming up from one judicial circuit may be determined in a way wholly different from that followed in a previous judgment in a cause turning upon the same point, but appealed from another circuit, because of a departure from the common law in one state which has not been made in another. In view of this, a doctrine originally proposed by Mr Justice Story in 1842^[7] has not been infrequently invoked of late years, which rests upon the assumed existence of a distinctive federal jurisprudence of paramount authority as to certain matters of general concern, as for example those intimately affecting commerce between the states or with foreign nations. The consequence is that a case involving such questions may be differently adjudged, according as it is brought in a state or in a federal court.^[8]

The divergences now most noticeable between English and American law are in respect of public control over personal liberty and private property, criminal procedure and the scope of the powers of municipal corporations.

Under the constitutional provision that no one shall be deprived of life, liberty or property without due process of law, American courts frequently declare void statutes which in England would be within the acknowledged powers of parliament. These provisions are liberally expounded in favour of the individual, and liberty is held to include liberty of contract as well as of person. Criminal procedure is hedged about with more refinements and safeguards to the accused than are found in England, and on the other hand, prosecutions are more certain to follow the offence, because they are universally brought by a public officer at public expense. The artificiality of the proceedings is fostered by a general right of appeal on points of law to the court of last resort. It is in criminal causes involving questions of common-law liability and procedure^[9] that English law-books and reports are now most frequently cited. American municipal corporations are confined within much narrower limits than those of England, and their powers more strictly construed.

Trial by jury in civil causes seems to be declining in public esteem. The expenses necessarily incident to it are naturally increasing, and the delays are greater also from a general tendency, especially in cities, where most judicial business is transacted, to reduce the number of Trial by jury.hours a day during which the court is in session. The requirement of unanimity is dispensed with in a few states, and it has been thus left without what many deem one of its essential features. The judge interposes his authority to direct and expedite the progress of the trial less frequently and less peremptorily than in England. A jury is waived more often than formerly, and there is a growing conviction that, with a capable and independent judiciary, justice can be looked for more confidently from one man than from thirteen.

The United States entered on the work of simplifying the forms of pleading earlier than England, but has not carried it so far. Demurrers have not been abandoned, and in some states little has been done except to replace one system of formality by another hardly less rigid. The general plan has been to codify the laws of pleading by statute. In a few states they have proceeded more nearly in accordance with the principles of the English Judicature Act, and left details to be worked out by the judges, through rules of court.^[10]

Most of the state constitutions assume that the powers of government can be divided into three distinct departments, executive, legislative and judicial; and direct such a distribution. In thus ignoring the administrative functions of the state, they have left a difficult question The legislature and the courts.for the courts, upon which the legislature often seeks in part to cast them. The general tendency has been to construe, in such circumstances, the judicial power broadly, and hold that it may thus be extended over much which is rather to be called quasi-judicial.^[11] A distinction is taken between entrusting jurisdiction of this character to the courts, and imposing it upon them. Where the statute can be construed as simply permissive, the authority may be exercised as a matter of grace, when it would be peremptorily declined, were the meaning of the legislature that it must be accepted.^[12] The courts, for similar reasons, have generally declined (in the absence of any constitutional requirement to that effect) to advise the legislature, at its request, whether a proposed statute, if enacted, would be valid. While its validity, were it to be enacted, might become the subject of a judicial decision, it is thought for that reason, if for no other, to be improper to prejudge the point, without a hearing of parties interested. The constitutions of several states provide for such a proceeding, and in these the Supreme Court is not infrequently called upon in this way, and gives responses which are always considered decisive of legislative action, but would not be treated as conclusive in any subsequent litigation that might arise.

The general trend of opinion in the Supreme Court of the United States since 1870, upon questions other than those arising under the XIVth Amendment, has been towards recognizing the police power of the several states as entitled to a broad scope. Even, for instance, in such a matter Police power of states.as the regulation of commerce between different states, it has been upheld as justifying a prohibition against running any goods trains on a Sunday, and a requirement that all railway cars must be heated by steam.^[13] In the “Granger Cases,”^[14] the right of the state to fix the rate of charges for the use of a grain elevator for railway purposes, and for general railway services of transportation, was supported, and although the second of these was afterwards overruled,^[15] the principle upon which it was originally rested was not shaken.

On the other hand, reasons of practical convenience have necessarily favoured the substantial obliteration of state lines as to the enforcement of statutory private rights. Massachusetts in 1840, six years before the passage of Lord Campbell’s Act, provided a remedy by indictment for the negligent killing of a man by a railway company, a pecuniary penalty being fixed which the state was to collect for the benefit of his family. In most of the other states by later statutes a similar result has been reached through a civil action brought by the executor or administrator as an agent of the law. In some, however, the state must be the plaintiff; in others the widow, if any there be. The accident resulting in death often occurs in a state where the man who was killed does not reside, or in which the railway company does not have its principal seat. It may therefore be desirable to sue in one state for an injury in another. Notwithstanding such an action is unknown to the common law, and rests solely on a local statute, the American courts uniformly hold that, when civil in form, it can be brought under such statutes in any state the public policy of which is not clearly opposed to such a remedy. In like manner, the responsibilities of stockholders and directors of a moneyed corporation, under the laws of the state from which the charter is derived, are enforced in any other states in which they may be found. Thus a double liability of stockholders to creditors, in case of the insolvency of the company, or a full liability to creditors of directors who have made false reports or certificates regarding its financial condition, is treated as of a contractual nature, and not penal in the international sense of that term.^[16] As a judgment of one state has equal force in another, so far as the principle of res adjudicata is concerned, the orders of a court in a state to which a corporation owes its charter, made in proceedings for winding it up, may be enforced to a large extent in any other. The shareholders are regarded as parties by representation to the winding-up proceedings, and so bound by decrees which are incidental to it.^[17]

The provisions of the United States law on different subjects and the literature concerning them are given in the separate articles. See the bibliography to the article Law; also Cooley on The Constitutional Limitations which rest upon the Legislative Power of the States of the American Union; Andrews on American Law; and Russell on The Police Power of the State, and Decisions thereon as illustrating the Development and Value of Case Law.  (S. E. B.) 

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1. The Slaughter-House Cases, 16 Wallace’s Reports, 36, 81.
2. Ibid. 89, 111, 129.
3. Guthrie on the Fourteenth Amendment, 27
4. Baldwin’s Modern Political Institutions, 111, 112.
5. Holden v. Hardy, 169 United States Reports, 336, 385-387.
6. Columbia Law Review, i. 99.
7. Swift v. Tyson, 16 Peters’ Reports, 1, 19.
8. See Forepaugh v. Delaware, Lackawanna & Western Railroad Company, 128 Pennsylvania State Reports, 267; Faulkner v. Hart, 82 New York Reports, 313; and Lake Shore & Michigan Southern Railway Company v. Prentice, 147 United States Reports, 101.
9. See, as examples, Commonwealth v. Rubin, 165 Massachusetts Reports, 453, in which Holmes, C.J., traces the rule that, if a man abuse an authority given him by the law, he becomes a trespasser ab initio, back to the Year Books; and Commonwealth v. Cleary, 172 Massachusetts Reports, 175, in which the same judge refers to Glanville and Fleta as authority for the proposition that the admission in evidence, in cases of rape, of complaints made by the woman soon after the commission of the offence is a perverted survival of the old rule that she could not bring an appeal unless she had made prompt hue and cry.
10. This has been carried furthest in Connecticut. See Botsford v. Wallace, 72 Connecticut Reports, 195.
11. Norwalk Street Railway Company’s Appeal, 69 Connecticut Reports, 576; 38 Atlantic Reporter, 708.
12. Zanesville v. Zanesville Telephone Company, 63 Ohio State Reports, 442; 59 North-Eastern Reporter, 109.
13. New York Railroad v. New York, 165 United States Reports, 628.
14. Munn v. Illinois, 94 United States Reports, 113; Chicago Railroad Company v. Iowa, ibid. 155.
15. Wabash Railway Company v. Illinois, 118 United States Reports, 557; Reagan v. Farmers’ Loan and Trust Company, 154 United States Reports, 362.
16. Huntington v. Attrill, 146 United States Reports, 657.
17. Great Western Telegraph Company v. Purdy, 162 United States Reports, 329; Fish v. Smith, 73 Connecticut Reports, 377; 47 Atlantic Reporter, 710.