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[1] 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.[2]
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[3] 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.[4]
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.[5] 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.[6] 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.[7] In the “Granger Cases,”[8] 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,[9] 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
- ↑ Swift v. Tyson, 16 Peters’ Reports, 1, 19.
- ↑ 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.
- ↑ 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.
- ↑ This has been carried furthest in Connecticut. See Botsford v. Wallace, 72 Connecticut Reports, 195.
- ↑ Norwalk Street Railway Company’s Appeal, 69 Connecticut Reports, 576; 38 Atlantic Reporter, 708.
- ↑ Zanesville v. Zanesville Telephone Company, 63 Ohio State Reports, 442; 59 North-Eastern Reporter, 109.
- ↑ New York Railroad v. New York, 165 United States Reports, 628.
- ↑ Munn v. Illinois, 94 United States Reports, 113; Chicago Railroad Company v. Iowa, ibid. 155.
- ↑ Wabash Railway Company v. Illinois, 118 United States Reports, 557; Reagan v. Farmers’ Loan and Trust Company, 154 United States Reports, 362.
