The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
Wholesale removals have also, in rare instances, been effected
for similar purposes by abolishing courts, the judges of which
held during good behavior.[Footnote: See Chap. VII.] Maryland
was the first to do this, abolishing a court and re-establishing
it at the same session, almost in the words of the former law.
Congress followed in 1802 by repealing the statute of the year
before by which a new scheme of Circuit Courts was arranged and
under which sixteen Federalists had been appointed to the bench.
Massachusetts did the same thing in 1811 with respect to her
Courts of Common Pleas.[Footnote: See Chap. VIII.]
The occurrence of vacancies has sometimes been prevented in a
similar manner when the nominating or appointing authority was
politically opposed to the legislature. The existence of a
supreme court is required by all our Constitutions, but the
number of the judges is frequently left to be fixed from time to
time by statute. The Federalists, when they were about to go out
of power, provided that the Supreme Court of the United States
should on the next vacancy be reduced from six to five, thus
seeking to prevent Jefferson from filling such vacancy. By 1863
the number had been raised to ten, but three years later, when a
Democratic President was contending with a Republican Congress,
it was enacted that as vacancies might occur it should be reduced
to seven. In 1869, when a Republican President had come in, the
number was restored to nine, and the new justice for whom a place
was thus made shortly joined in reversing a decision made by the
court not long before and quite unsatisfactory to the majority in
Congress on an important constitutional point. Similar
legislation, for like reasons, has been had in many of the
States.
* * * * *
CHAPTER XXIII
THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
BENCH
Every lawyer is an officer of the court as fully as is the judge
or the clerk. He has, indeed, a longer term of office than is
generally accorded to them, for he holds his position for life,
or during good behavior.
Courts could not exist under the American system without lawyers
to stand between litigants and the judge or jury. It is a system
that requires written pleadings, originally very artificial in
form and still somewhat so. It imposes many limitations on the
introduction of evidence, which often seem to shut out what ought
to be admitted, and rest on reasons not apparent to any who have
not been specially instructed in legal history. It divides the
decision of a cause between judge and jury in a manner only to be
understood after a long and close study. It gives a defeated
party a right of review dependent on a number of technical rules,
and to be availed of only by those who are skilled in the
preparation of law papers of a peculiar kind.
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