One system of Courts Importance of Judiciary in Federal System resulted in some cases in legislation whereby the rules of procedure have been amended, and, in other cases to a more enlightened and liberalized spirit upon the part of appellate tribunals. Though not now so great as it once was, the evil is, however, still a serious one in America. It is highly important, however, that all the courts should be parts of a single system and operate in subordination to a central authority which has the power to prescribe the detailed rules of procedure and practice by which they all shall be governed. Only in this way can the system be made a flexible one, that is, one of which the rules can be easily changed as experience shows the need. This central rule-making authority may very well be the court of last resort. In systems of federal government such as exists in the United States the problem of judicial administration is an especially complicated one. In the first place, there is the principle, from which it is not practicable to depart, that the writs of the courts of the individual states shall not be enforcible outside of the respective state boundaries. Thus a fugitive from justice can be apprehended and brought to trial only by what are known as extradition proceedings; the attendance of witnesses in the other states, where their presence is desired, cannot be secured unless they are willing to come; the judgments and decrees of the courts of one state cannot be enforced as such in other states but have to be first sued upon in the courts of the other states and new judgments or decrees obtained thereupon; even the persons entitled to practise law in one state can appear as counsel in the courts of other states only upon permission obtained from them. The foregoing principles do not apply to the courts of the National Government. Their writs run throughout the Union, but their jurisdictions extend only to special cases, being dependent upon the character of the parties litigant or the special character of the subject matter of the uits brought. In the second place there is the necessity for bringing Harmony he operations of the federal and state judicial systems nto harmony so that national supremacy will be secured and, at the same time, the state judiciaries protected in the autonomous exercise of their several jurisdictions. As he experience of the United States has shown, abundant pportunity for friction is here presented. The questions of constitutional law thus raised are, however, of too echnical a character to be here discussed. between Federal and It is generally believed that the right of appeal has been too liberally granted in America. It does, indeed, urnish opportunity for the correction of errors, but the principle has been carried too far, with the result that itigation has been rendered unnecessarily costly and the endering of final judgments unduly delayed. And then, oo, as has already been pointed out, the appellate courts have themselves increased these evils by granting new rials upon the ground of merely technical errors which have worked prejudice to no one. But this evil is, of course, not inherent in the appellate system. The right of an appeal from a trial to an appellate court Appeals and s not demanded by the constitutional requirement of due process of law. That is, it is not a matter of constitutional ight but of legislative policy. On the whole, then, t would seem better that greater care should be taken in he selection of the judges of the trial courts, so that misarriages of justice should be reduced to a minimum, and the ight of appeal upon questions of fact and of procedure correspondingly curtailed. As regards questions of law t is necessary that appeals be permitted to the supreme court of the system in order that, by the decisions t renders, an authoritative determination of what is the aw may be secured which will be binding upon all the ower courts. Due Process of Law In the appellate courts in America it is usual for three or more judges to sit, and to render judgments by a majority vote. Upon the Continent of Europe two or more judges sit in many of the lower courts, but in these the jury is not so generally used, especially in civil cases.1 TOPICS FOR FURTHER INVESTIGATION The American Doctrine of Judicial Supremacy.-For references, see above, p. 395. The United States Supreme Court as a House of Lords.For references, see above, p. 392. The Growth of Administrative Law in the United States.For references, see above, p. 399. French Administrative Courts.-For references, see above, p. 399. The English Judicial System.-For references, see the note below. The Administration of Justice in the United States.-R. H. Smith, Justice and the Poor, (Bulletin of the Carnegie Foundation for the Advancement of Teaching, 1919); Bulletins of the American Judicature Society, Vols. I-XIV. 1On the English judiciary, see Lowell, The Government of England, Vol. II, p. 439 ff; on the French system, Sait, Government and Politics of France, Chapters XI and XII, Garner, "Criminal Procedure in France," Yale Law Journal, Vol. XXV, p. 255, and "Judicial Control of Administrative and Legislative Acts in France," American Political Science Review, Vol. IX, p. 637; on the Swiss system, Ogg, The Governments of Europe, (rev. ed.). p. 600 and Brooks, Governments and Politics of Switzerland, Chap. VII; for Germany, Lowell, Governments and Parties in Continental Europe, Vol. I, p. 281 and Garner, "The German Judiciary," Political Science Quarterly, Vol. XVII, p. 490 and Vol. XVIII, p. 512. CHAPTER XXII STATE GOVERNMENT IN THE UNITED STATES General of State Govern ments ASIDE from the provision that their governments shall be republican in form, there is no restriction laid upon the uniformity states by the National Constitution as to the manner in which they shall organize themselves.1 Each is thus left free to adopt that kind of government it may see fit, subject only to this one requirement, which none of them has desired to evade. In point of fact, however, notwithstanding this constitutional latitude of choice, there is a very considerable similarity in the general features of the governments which the forty-eight states have established. What will be said in this discussion will therefore be generally applicable to all of the states even if not specifically true in some instances. Limited In considering the organization of the executive branch, it is to be remembered that these governments have to perform but a part of the functions that ordinarily fall to the political institutions of a developed unitary State. In the first place, very important duties lie within the exclusive province of the National or Federal Government; jurisdiction and, in the second place, local self-government is so fully developed that very many public activities are handed over to the governing bodies which exist in the cities, the counties, and smaller administrative districts into which 1See above, p. 154. On problems of state government generally see the comprehensive discussions by A. N. Holcombe, State Government in the United States and J. M. Matthews, Principles of State Administration. Of special importance are the three collections of material prepared for the use of the Constitutional Conventions in New York (1915), Massachusetts (1917), and Illinois (1920). There is a full bibliography in Holcombe, and other material is referred to in the following notes. Federal matters Devolution to local agencies all the states are divided. Thus, all questions of war and peace, of foreign affairs generally, of customs regulations, of currency, of post-offices, of naturalization and banking, patents and copyrights, and, in a considerable measure, of the regulation of railways, telegraphs, telephones, and express companies, are matters with which the governments of these states have no direct concern. The whole field of admiralty and maritime jurisdiction, except with reference to navigation upon purely intra-state waters and the establishment of harbor regulations, is withdrawn from the states. And, finally, a very considerable number of the judicial controversies that arise in the United States are adjudicated in the federal rather than in the state courts, for it is to be remembered that, unlike the system followed in the federated states of the German Empire, the central government of the United States executes all its functions through governmental agencies established and maintained by itself, and which are separate from and independent of the governments of the several states of the Union.1 In the second place, as has been already mentioned, these states have seen fit to assign the performance of many of the duties that are constitutionally reserved to them to the local governing bodies of the smaller areas into which, for administrative purposes, they are subdivided. Thus it is, that the states of the American Union have not found it necessary to establish elaborately constructed executive branches of government such as are imperatively demanded by States which are not federal in character, or which have not developed effective systems of local government. What has been said explains also the fact that in none of the states do we find an administrative organization 1 But see Douglas, "A System of Federal Grants-in-Aid," Political Science Quarterly, June and December, 1920, and below, p. 483 u. |