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subsisting in the heroic ages. In some countries, this simple and undisguised mode is still observed.?
Among the Saxons, as we are informed by Selden, their courts, like the heliastic court at Athens, were, for the most part, kept in the open air.3
By the ancient Romans, trials were held in public, in the
presence of the accused, and of all who wished to hear them. This procedure was open and noble; says the writer4 who mentions it ; it breathed Roman magnanimity.
In France, too, as appears, we are told, from some old manuscript law books, criminal processes were anciently carried on in public, and in a form not very different from the public judgments of the Romans. “The witnesses,” says
Beaumanoir, one of the oldest writers on the laws of France, " ought to give their testimony in open court.” 5
All trials, says Beccaria, should be public ; that opinion, which is the best, or, perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge ; and that the people, inspired with courage, may say, “ We are not slaves ; we are protected by the laws.”
“Let not,” says my Lord Bacon, in the same spirit of sound sense, “ decrees issue in silence : let judges give the reasons of their judgments : let them do this openly ; that what is unrestrained in point of authority, may be circumscribed by a regard to character and fame.”
But why, it may be asked, are examples produced in such numbers—why do we cite authorities of so much weight, in order to establish a principle, in itself so extremely plain ? Is it not self-evident, that, in a court of justice, every one is entitled to a public trial ? Why, then, refer us to instances, in Asia, in Greece, in Rome, in France, of the enjoyment of a self-evident right?
1 II. I. 18, v. 497. 2 1 Gog. Or. L, 28.
8 Bac. on Gov. 10. 4 Com. on Bec. c. 22. 6 Mont. Sp. L. b. 28, c. 34. 6 C. 14.. 71 Ld. Bac. 252. Aph. 38.
Because, in Asia, in Greece, in Rome, in France, too, till very lately, the enjoyment of this self-evident right has been lost. Liberty, indeed, says it is self-evident: but tyranny holds a contrary language ; and unfortunately for the human race, the voice of tyranny has been more loud and more powerful than the voice of freedom.
To states as well as to individuals, the lesson is salutary-let those, who stand, take heed lest they fall. Asia is fallen, Greece is fallen, Rome is fallen, France is fallen -I correct myself—she rises. Let the other monitory instances suggest caution : I offer them not to your imitation.
The slave who suffers, and the slave who dreads the inquisition-how would he exult to be able to say, in the irrevocable language of Pennyslvania, “all courts shall be open.”
According to the rules of judicial architecture, a system of courts should resemble a pyramid. Its base should be broad and spacious : it should lessen as it rises : its summit should be a single point. To express myself without a metaphor-in every judicial department, well arranged and well organized, there should be a regular, progressive gradation of jurisdiction ; and one supreme tribunal should superintend and govern all the others.
An arangement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and it supports every inferior court within the limits of its just jurisdiction.
If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision ; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be
equally final and irreversible. But when, from those opposite determinations, an appeal to a jurisdiction superior to both is provided, one of them will receive a sentence of confirmation, the other, of reversal. Upon future occasions, the determination confirmed will be considered as an authority ; the determination reversed will be viewed as a beacon.
Ampliare jurisdictionem has been a principle avowed by some judges : it is natural, and will operate where it is not avowed. It will operate powerfully and irresistibly among a number of co-ordinate and independent jurisdictions; and, without a tribunal possessing a control over all, the pernicious and interfering claims could neither be checked nor adjusted. But a supreme court prohibits the abuse, and protects the exercise, of every inferior judiciary power.
In France, before the present revolution, the establishment of a number of parliaments or independent tribunals produced, in the different provinces, a number of incongruous and jarring decisions. This has been assigned, and with much apparent reason, as the great source of that diversity of customs and laws, which prevailed, to an uncommon degree, in the different parts of the kingdom of France, in other respects so well compacted.
In England, the principles and the rules of law are, through the whole judiciary department, reduced to a standard, uniform in an exemplary degree. In no country, perhaps, does a stronger impression prevail of the advantages resulting from stability in the administration of justice. But by an unwise inattention, to say the least of it, to the inferior establishments, the base of the exquisitely proportioned edifice, erected by Alfred, is narrowed and weakened ; and its beauty and durability are consequently impaired.
In the United States and Pennsylvania--for here we
must take the two constitutions in a collected view-a fine and regular gradation appears, from the justices of the peace in the commonwealth, to the supreme court of the national government. The justice of peace is, in criminal matters, assisting to the court of quarter sessions : in civil causes, his jurisdiction is subordinate to the court of common pleas. The courts of common pleas, and quarter sessions, and orphans' courts of each county are subordinate to the supreme court, whose jurisdiction extends over the commonwealth. The supreme court is, by a late law, rendered subordinate to the high court of errors and appeals. With regard to the register's court, an exception is introduced by the law just now mentioned. Though a county jurisdiction, it is not rendered subordinate to the supreme court by an appeal : that revisionary process is directed per saltum to the high court of errors and appeals. From the highest court of a state, a writ of error lies, in federal causes, to the supreme court of the United States. In the national government, a writ of error lies from a district to a circuit court, and from a circuit to the supreme court.
In controversies, to which the state or nation is a party, the state or nation itself ought to be amenable before the judicial powers. This principle, dignified because it is just, is expressly ratified by the constitution of Pennsylvania. It declares, that suits may be brought against the commonwealth. The manner, the courts, and the cases, in which they may be brought, are left to the direction of the legislature. It was deemed sufficient to recognize the principle : its operation will be guided in such a way, as time and circumstances shall suggest. Upon the same principle, the judicial power of the national government “shall extend to controversies to which the United States
1 Art. 9, s. 11.
are a party ; and to controversies between two or more states.” 1
These provisions may be viewed by some as incompatible with the opinions, which they have formed concerning the sovereignty of the states.2
In the introduction to my lectures,3 I had an opportunity of showing the astonishing and intricate mazes, in which politicians and philosophers have, on this subject, bewildered themselves, and of evincing, that the dread and
i Cons. U. S. art. 3, s. 2.
[* The argument which here follows as to the suability of a state under the constitution as it was originally adopted foreshadows the opinion of Judge Wilson and the other judges in the great case of Chic!olm 0. Georgia, 2 Dall. 419. A case which arose in the Supreme Court of the United States in 1792, in which jurisdiction was assumed at the suit of an individual against a state. It was here that the relation of the state to the nation was established and defined. Of this decision Judge Cooley says : “Nothing could be plainer than this opinion ; nothing more unequivocal. The people of the United States by sovereign act had formed the Constitution to make more perfect the Union which had existed before. After this clear and authoritative declaration of national supremacy, the power of a court to summon a State before it at the suit of an individual might be taken away by the amendment of the Constitution -as was in fact done [by the eleventh amendment]-without impairing the general syinmetry of the federal structure, or inflicting upon it any irremediate injury. The Union might survive and accomplish the beneficent purposes entrusted to it, even though it might lack the power to compel the States to perforın their obligations to creditors. We shall not pause to show-what indeed is self-evident—that the Union could scarcely have had a valuable existence had it been judicially determined that the powers of sovereignty were exclusively in the States or in the people of the States severally. Neither is it important that we proceed to demonstrate that the doctrine of an indissoluble Union, though not in terms declared, is nevertheless in its elements at least contained in the decision. The qualified sovereignty, national and State, the subordination of State to nation, the position of the citizen as at once a necessary component part of the federal and of the State system, are all exhibited. It must logically follow that a nation as a sovereignty is possessed of all those powers of independent action and self-protection which the successors of Jay subsequently demonstrated were by implication conferred upon it.” Ann Arbor Lectures on Constitutional Law, p. 49. ]
Ante, vol. 1, p. 21-23.