THE FEDERAL JUDICIARY
=Establishment of the federal Judiciary.=--The Articles of
Confederation, as we have seen, made no provision for a national
judiciary. Hamilton declared this to be the crowning defect of the old
government, for laws, he very properly added, are a dead letter without
courts to expound their true meaning and define their operations. During
the period of the Confederation, the national government was dependent
for the most part, as has been said, on the states for the enforcement
of its will. Thus if some one counterfeited the national currency,
robbed the mails, or assaulted a foreign ambassador, there was no
national court to take jurisdiction of the case and punish the offender.
The only way by which he could be brought to justice and the authority
of the national government upheld was through the kindly assistance of
some state court, and this assistance was not always cheerfully lent nor
was it always effective when tendered. Congress to be sure acted as a
court for the settlement of disputes between the states themselves, but
a legislative assembly is never well fitted for exercising judicial
functions. In the absence of a national judiciary it proved impossible
to enforce solemn treaty stipulations to which the United States was a
party, a fact which led Great Britain to refuse to carry out certain of
her treaty engagements with the United States.
=The Judicial Power of the United States.=--The framers of the
Constitution decided that the jurisdiction of the national courts should
be restricted to questions of national interest and to those involving
the peace and tranquillity of the Union, such as disputes between the
states themselves and between citizens of different states, and that the
jurisdiction of all other controversies should be left to the
determination of the courts of the several states. The jurisdiction of
the federal courts, therefore, was made to include all cases whether of
law or equity arising under the national Constitution, the laws of the
United States, and all treaties made under their authority; all cases
affecting ambassadors, other public ministers, and consuls; all cases of
admiralty and maritime jurisdiction; all controversies to which the
United States is a party; all controversies between two or more states;
and between a state, or the citizens thereof, and foreign states or
citizens or subjects thereof.[96]
[96] In two classes of these cases, namely, those in which ambassadors,
other public ministers, and consuls are parties and those in which a
state is a party, the Supreme Court has _original_ jurisdiction, that
is, the right to hear and determine the case in the first instance. But
that does not mean that the Supreme Court has exclusive jurisdiction in
such cases. Other federal courts may try such cases, and as a matter of
fact few original suits have ever been brought in the Supreme Court. In
the other classes of cases mentioned, the Supreme Court has _appellate_
jurisdiction (with such exceptions as Congress may make), that is, such
cases must be commenced in the lower courts, from which they may be
taken on appeal to the Supreme Court.
The wisdom and propriety of giving the federal courts jurisdiction over
all such cases are obvious, since they involve either national,
interstate, or international questions. Manifestly, the state courts
could not properly be left to determine finally controversies involving
the meaning or the application of provisions of the federal
Constitution, laws, or treaties, since in that case they would not be
what they are declared to be, namely, the supreme law of the land.
Conflicting decisions would be rendered by the courts of different
states, and in case of inconsistency between state constitutions and
laws on the one hand and the federal Constitution, laws, and treaties on
the other, the state courts would be under the temptation to uphold the
validity of the former.
_The Eleventh Amendment._--As originally adopted, the Constitution
permitted suits to be brought in the federal courts against a state by
citizens of another state or by citizens of foreign countries, and when
a suit brought against the state of Georgia in 1793 by a citizen of
South Carolina named Chisholm for the recovery of a debt was actually
entertained by the Supreme Court, widespread popular indignation
followed the decision. The authorities of Georgia felt that it was
derogatory to the dignity of a sovereign state that it should be made
the defendant in a suit brought by a private individual, and a demand
was made that the Constitution be amended so as to prevent such "suits"
in the future. As a result of this demand, the Eleventh Amendment was
adopted in 1798 which declared that the judicial power of the United
States should not be construed to extend to suits brought against a
state by citizens of another state or of a foreign country. Nevertheless
while a state cannot be made a defendant in a federal court at the
instance of a private individual of another state, the federal courts
may entertain jurisdiction of suits between a state and a citizen of
another state provided the state is the plaintiff.
_How Cases "Arise."_--A case "arises" under the Constitution, laws, or
treaties whenever a suit is filed involving a right or privilege
thereunder. Until a case "arises," that is, until it comes before the
courts in due form, they will take no notice of it. When President
Washington in 1793 sought the opinion of the Supreme Court on certain
points involving our obligations to France under the treaty of alliance
of 1778 it declined to answer his question, holding that it could give
opinions only in cases properly brought before it.
=The Regular Federal Courts.=--The Constitution declares that the
judicial power of the United States shall be vested in one Supreme Court
and in such inferior courts as Congress may from time to time ordain and
establish. The Supreme Court, therefore, is the only federal tribunal
which owes its existence to the Constitution, the others being created
by statute. Even as to the Supreme Court Congress has considerable power
of control, since it determines the number of judges of which it shall
be composed, and the amount of their compensation. But it cannot remove
any judge except upon impeachment, or reduce his compensation after he
has once been appointed.
_The Supreme Court_ is at present composed of one Chief Justice and
eight associate justices. It holds its sessions in the city of
Washington from October to May of each year. Practically all the cases
which it hears are those appealed from the lower courts. When a case has
been argued, the court holds a consultation at which the points involved
are considered and a decision is reached. The Chief Justice then
requests one of his associates to prepare the opinion of the court, or
he may prepare it himself, after which it is scrutinized by the court at
a second conference and approved. Any member of the court who disagrees
with the majority may file a dissenting opinion, a right frequently
taken advantage of. The concurrence of at least five of the nine judges
is necessary to the validity of a decision, and as a matter of fact,
many important decisions have been rendered in recent years by a bare
majority of the court. The opinions rendered are published as the
_United States Reports_, of which there are now more than 200 volumes.
They constitute the great authoritative source of the constitutional law
of the United States, are studied by lawyers and judges, and are relied
upon by the courts as precedents for the decisions of future cases
involving similar points of law.[97] There is a reporter who arranges and
publishes the opinions, a clerk who keeps the records, and a marshal who
attends the court, preserves decorum, and enforces its orders.
[97] The justices of the Supreme Court wear black silk gowns when
holding court. The Chief Justice sits in the middle of a row of chairs,
his associates being arranged on his right and left in the order of
seniority of service.
_The Circuit Courts of Appeals._--Next below the Supreme Court are the
circuit courts of appeals, nine in all--one for each of the judicial
circuits into which the country is divided.[98] These courts were created
by act of Congress in 1891 to relieve the Supreme Court from an
accumulation of business that rendered the prompt decisions of cases
impossible, the docket of the court having become so overcrowded that it
was about three years behind with its business. The act creating the
circuit courts of appeals, however, did not provide an additional class
of judges to hold these courts, but enacted that each of them should be
held by three judges assigned for the purpose from among the judges of
the circuit. The judges of each circuit include one justice of the
Supreme Court assigned to the circuit, two or more circuit judges
appointed for the circuit, and a considerable number of district judges,
each appointed for a district in the circuit. Most circuit courts of
appeals are held by three circuit judges; but occasionally by two
circuit judges together with a district judge or the Supreme Court
justice. The circuit courts of appeals have only appellate jurisdiction,
that is, they hear and determine only cases appealed from the lower
courts, and their decisions are final in most cases. This relieves the
Supreme Court of all but the most important cases, and enables it to
give more attention to the cases before it and to dispatch its business
more promptly.
[98] The first circuit embraces Maine, Massachusetts, New Hampshire,
and Rhode Island; the second, Connecticut, New York, and Vermont; the
third, Delaware, New Jersey, and Pennsylvania; the fourth, Maryland,
North Carolina, South Carolina, Virginia, and West Virginia; the fifth,
Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas; the sixth
Kentucky, Michigan, Ohio, and Tennessee; the seventh, Illinois,
Indiana, and Wisconsin; the eighth, Arkansas, Colorado, Oklahoma, Iowa,
Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, South
Dakota, Utah, and Wyoming; the ninth, Alaska, Arizona, California,
Idaho, Montana, Nevada, Oregon, Washington, and Hawaii.
_Former Circuit Courts._--Prior to 1911 next below the circuit courts of
appeals were the circuit courts, which were held in the different
districts within the circuit, either by a circuit judge or by the
justice of the Supreme Court assigned to the circuit, or by a district
judge, or by the three, or any two of them, sitting together. In 1911
the circuit courts were abolished and their jurisdiction conferred on
the district courts. The circuit judges, however, were retained and will
henceforth sit in the circuit courts of appeal.
_The District Courts._--The lowest grade of federal court is the district
court, held in each of the districts (about eighty) into which the
country is divided. In some cases a state constitutes one district; in
other cases a state is divided into two, three, four, or five
districts. Usually there is one judge for each district, though in a few
cases there are several judges for a single district, each holding court
separately.
The jurisdiction of the district court embraces civil and criminal cases
under the laws of the United States--such as suits for the infringement
of patents and copyrights, admiralty cases, bankruptcy proceedings,
revenue cases; and offenses against the United States revenue laws, laws
against counterfeiting, the public land laws, the pure food laws, the
postal laws, and the interstate commerce laws. Controversies between
citizens of different states may also be brought to this court.[99]
[99] Such suits may also be brought in the state courts but may at the
option of the defendant be transferred to a federal court for trial.
Many lawyers prefer to bring their suits in the state courts even when
they have the privilege of suing in the federal courts, because of
their greater familiarity with the procedure of these courts.
In most cases appeals may be taken from the decisions of the district
courts to the circuit courts of appeals or to the Supreme Court.
=Federal Attorneys, Marshals, and Clerks.=--In each of the federal
judicial districts, there is a United States attorney who prosecutes
violations of the federal laws in his district. There is also in each
district a United States marshal who bears somewhat the same relation to
the federal court that a sheriff does to a state court. He executes the
processes of the court, arrests offenders, and performs other
ministerial functions for the court. In each district there is a clerk
who has custody of the seal of the court and keeps a record of its
proceedings, orders, judgments, etc. The marshal and attorney are
appointed by the President, but the clerk is chosen by the court
itself.
In each district, also, the court appoints a number of United States
commissioners who are empowered to issue warrants for arrest, take bail,
determine whether accused persons shall be held for trial, and perform
other duties somewhat similar to those discharged by justices of the
peace under the judicial system of the state.
=The Regular Federal Judges.=--_Appointment._--All federal judges are
appointed by the President, by and with the advice and consent of the
Senate. The judges of most of the states, as we have seen, are now
chosen by popular election, but that method did not commend itself to
the framers of the federal Constitution. The existing method of
appointing federal judges has given general satisfaction, and with
remarkably few exceptions, the persons appointed to the federal bench
have been men of integrity and fitness.[100]
[100] For a description of the comparative merits of the various
methods of selecting judges, see pp. 113-114.
The _term_ for which all the regular federal judges are appointed is
good behavior. This is virtually for life, since they cannot be removed
except by impeachment.[101] All other officers of the United States are
appointed for definite terms, usually for four years. Except in a few
states, the state judges are elected for definite terms ranging from two
years to twenty-one years (p. 113). The framers of the federal
Constitution, however, were deeply impressed with the advantages of a
judiciary possessing the qualities of permanency and independence, and
they wisely provided that the judges should hold their offices so long
as their official conduct was above reproach.
[101] For a list of federal judges who have been impeached see p. 194.
_Compensation._--The Constitution declares that the judges shall receive
at stated times a compensation for their services which shall not be
diminished during their continuance in office. As we have seen, the
compensation of the President can neither be increased nor diminished
during the time for which he is elected, but the prohibition in the case
of the judges applies only to a reduction of their salaries. Increases
are permitted to be made at any time. The compensation now allowed the
chief justice of the Supreme Court is $15,000 a year, and the associate
justices $14,500, amounts which are low in comparison with the salaries
of the highest English judges, who receive $25,000 a year. The circuit
judges receive $8,500 a year, and the district judges $7,500.
Any judge of a United States court having held his commission ten years
and having attained the age of seventy years, may retire from the bench
and receive the same salary during the rest of his life that was payable
to him at the time of his resignation. Few judges do retire, however.
=Power of the Supreme Court to Declare Laws Unconstitutional.=--An
important power of the Supreme Court for which there is no direct
authority in the Constitution, is that of declaring acts of Congress
which are in conflict with the Constitution, null and void and of no
effect. This power was first exercised by the Supreme Court in 1801 in
the famous case of Marbury v. Madison. Congress had passed an act giving
the Supreme Court original jurisdiction in certain cases where the
Constitution says it should have appellate jurisdiction, and when the
act came before the court for enforcement it declined to be bound by it.
The great chief justice, John Marshall, wrote the opinion of the court
which held the act of Congress null and void. His argument, in brief,
was that the Constitution is the supreme law of the land and the judges
are bound to give effect to it. When, therefore, the court is called
upon to give effect to a law of Congress which is clearly in conflict
with the higher law of the Constitution, it must give the preference to
the latter, otherwise the declaration in favor of the supremacy of the
Constitution would have no meaning. Down to 1913 the Supreme Court had
declared thirty-three acts of Congress, or parts of such acts,
unconstitutional.
_Power to Declare State Laws Unconstitutional._--Laws passed by the
state legislatures, ordinances of municipal councils, and even the
provisions of state constitutions themselves may be declared null and
void by the Supreme Court in case they are in conflict with the national
Constitution or the laws and treaties made in pursuance thereof. It has
already been pointed out that appeals may be taken to the federal
Supreme Court from the highest courts of a state whenever a right,
title, or privilege under the federal Constitution is involved and the
state court has decided against the right or privilege claimed. Thus
where one is prosecuted and convicted under a state law or provision of
a state Constitution which he claims is contrary to some provision in
the federal Constitution or laws, he has a right to appeal to the United
States Supreme Court and have the question of the constitutionality of
the state law finally determined there. This is a necessary consequence
of the supremacy of the federal Constitution and laws over those of the
states. More than 200 acts of state legislatures have been pronounced
null and void by the United States Supreme Court.[102]
[102] Baldwin, "The American Judiciary," p. 106.
Sometimes inferior federal courts declare acts of Congress and of the
state legislatures to be unconstitutional, but in all such cases an
appeal may be taken to the Supreme Court for final review.
=Special Courts of the United States.=--In addition to the three classes
of United States courts, already described, several tribunals of a
special or temporary character have been created to hear and determine
particular classes of controversies. Some of these courts are held by
judges who are appointed for definite terms.
_The Court of Claims_ was created in 1855 to pass upon claims against
the government. It consists of a chief justice and four associate
justices who serve during good behavior. It is a well-established
principle of public law that a sovereign state cannot be sued against
its will. Before the creation of this court claims against the
government had to be considered by Congress, a body which aside from
being ill fitted for the hearing of such cases, was overburdened by the
necessity of considering the large number of claims annually laid before
it. The government now allows itself to be sued in this court on most
claims of a contractual nature, but the judgments of the court cannot be
paid until Congress appropriates the money for their payment, and hence
the court cannot issue an execution to enforce its findings. At each
session of Congress, an appropriation is made to satisfy any judgments
made or which may be made by the court. Appeals are allowed to be taken
from the court of claims to the Supreme Court on questions of law. Among
the more important classes of claims that have been adjudicated by this
court were the French Spoliation claims, and Indian depredation claims,
both involving numerous claims and very large amounts in the aggregate.
In 1906 a United States court was established in China to exercise
jurisdiction in certain cases previously exercised by the consuls. It is
held by a single judge appointed by the President for a term of four
years.
The tariff law of 1909 created a _United States Court of Customs
Appeals_, consisting of a presiding judge and four associates, to hear
appeals from the board of general appraisers in cases involving the
construction of the law and facts respecting the classification of
imported articles and the rate of duty imposed thereon.
In 1910 a _Commerce Court_ was created, to decide appeals from the
orders of the Interstate Commerce Commission; but in 1913 this court was
abolished.
In the _District of Columbia_ Congress has created two courts, with
judges appointed to hold office during good behavior: the supreme court
of the district, consisting of a chief justice and five associate
justices; and the court of appeals, consisting of a chief justice and
two associate justices. Appeals may be taken from the former to the
latter, whose decisions in some cases are reversible by the Supreme
Court of the United States. Appeals may also be taken from the decisions
of the commissioner of patents to the court of appeals of the District
of Columbia.
In each of the _territories_ there are supreme and district courts
established by Congress in pursuance of its power to provide for the
government of the territories, but they are not considered as a part of
the judicial system of the United States, although the judges are
appointed by the President.[103]
[103] In most of the countries of continental Europe there is a special
class of tribunals called "administrative courts" to decide
controversies between private individuals and the public authorities.
There are no such courts in the United States, although the customs
court, the court of claims, and the interstate commerce commission bear
some resemblance to an administrative court. Many "administrative"
questions are decided by such officials as the secretary of the
treasury, the commissioner of immigration, and the commissioner of
patents.
=Constitutional Protections in the Federal Courts.=--The Constitution
contains a number of provisions intended to protect accused persons
against unauthorized prosecutions in the federal courts, as well as
against arbitrary procedure in the course of the trial. As the
Constitution originally stood, it contained few provisions of this kind;
and this fact constituted one of the most serious objections urged
against the ratification of that instrument. In consequence of this the
first ten Amendments were adopted in 1790, and of these no less than
five relate to the rights of accused persons on trial in the federal
courts.
Most important of all, perhaps, the _Sixth Amendment_ declares that in
criminal prosecutions (in the federal courts) the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed; that he
shall be informed of the nature and cause of the accusation; that he
shall have the right to be confronted by the witnesses against him; that
he shall have compulsory process for obtaining witnesses in his favor;
and that he shall have the assistance of counsel for his defense.[104]
[104] The purpose and meaning of these guarantees are discussed in
chapter vi, pp. 118-119.
The _Fifth Amendment_ protects the accused from prosecution in capital
cases or cases involving infamous crime except upon indictment by a
grand jury. Some of the states, as we have seen, have abolished the
grand jury, and provided for prosecutions in their courts without the
intervention of such an agency, but no person may be prosecuted in a
federal court for a serious crime until he has been held for trial by a
grand jury. The same amendment also forbids the trial of a person a
second time for the same offense, if he was acquitted on the first
trial; declares that he shall not be compelled to testify against
himself; that he shall not be deprived of life, liberty, or property
without due process of law; and that private property shall not be taken
for public use without just compensation.
_The Fourth Amendment_ declares among other things that no warrant for
arrest (by the federal authorities) shall be issued except upon probable
cause, supported by oath or affirmation and particularly describing the
person to be seized. This provision is designed to prevent arbitrary
arrests of persons on mere suspicion. It prohibits general search
warrants such as were commonly used by the British authorities in the
colonies prior to the outbreak of the Revolution and which were
popularly known as "writs of assistance." Such warrants did not mention
the name of the person to be arrested but permitted the officer to
insert any name in the warrant and arrest whomsoever he might choose.
_The Eighth Amendment_ declares that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted. The purpose of the first provision is discussed on p. 119.
The purpose of the other two prohibitions is to prevent the old
severities of the penal code that were common two hundred years ago.
_Treason._--Among the crimes in the prosecution of which judges were
frequently arbitrary and which were punished with undue severity, was
that of treason. Treason has always been regarded as the highest crime
known to society, because it seeks the overthrow or destruction of the
government itself. In earlier times, judges frequently construed
offenses to be treasonable which were not declared so by the laws. This
was known as _constructive_ treason. To prevent them from construing the
existence of treason where it really did not exist, parliament therefore
passed a statute during the reign of Edward III defining the offense
with more or less precision, and this definition in substance was
incorporated in the Constitution of the United States, This provision
declares that treason against the United States shall consist only in
levying war against them or in adhering to their enemies, giving them
aid and comfort. The Supreme Court in interpreting this provision has
ruled that in order to constitute treason there must be an actual
levying of war or an assembling of persons for the purpose of making
war; that a mere conspiracy to subvert the government by force is not
treason, but after the war has once begun, all those who perform any
part, however minute or remote, or who give aid and comfort to the
enemy, are traitors and as such are liable to the penalties of treason.
To protect persons accused of treason against conviction upon the
testimony of a single witness, the Constitution requires the testimony
of two witnesses to the act, or confession in open court, to convict.
Congress is authorized to prescribe the punishment of treason, but the
Constitution declares that no attainder of treason shall work corruption
of blood or forfeiture except during the life of the person attainted.
Under the old law, a person convicted of treason was not only put to
death in a barbarous manner, but his blood, was considered as
"corrupted" or "attainted," so that as a matter of course, without any
decree of the court to that effect, his children could not inherit
property or titles through him. Thus the innocent offspring of the
traitor were punished for the offense of the parent. The provision of
our Constitution places the punishment on the offender alone.
=References.=--ANDREWS, Manual of the Constitution, pp. 201-223.
BALDWIN, The American Judiciary, ch. ix. BEARD, American Government
and Politics, ch. xv. BRYCE, The American Commonwealth (abridged
edition), chs. xxi-xxii. HARRISON, This Country of Ours, chs.
xx-xxi. HART, Actual Government, ch. xvii.
=Documentary and Illustrative Material.=--1. The Congressional
Directory, which contains a list of the higher judges and the
judicial districts. 2. Specimen copies of decisions of the Supreme
Court. These may be obtained from the clerk of the Supreme Court at
Washington.
RESEARCH QUESTIONS
1. Name the Chief Justices of the United States Supreme Court from 1789
to the present time.
2. Name the present members of the Supreme Court and give the date of
the appointment of each. (See Congressional Directory).
3. In which one of the nine judicial circuits of the United States do
you live? Who is the Supreme Court justice assigned to the circuit? Who
are the circuit judges of the circuit?
4. Who is the United States district judge for your district? At what
places in your state are United States district courts held?
5. Who is the United States attorney for your district? The United
States marshal?
6. What is meant by the terms "constitutional" and "unconstitutional" as
applied to an act of Congress? Do you think the courts should be allowed
to declare a law unconstitutional?
7. Do you think it is a wise provision which allows federal judges to
serve during good behavior?
8. It has been proposed by a well-known public man that federal judges
should be elected by the people. What is your opinion of the
proposition?
9. Do you think the present salary allowed justices of the Supreme Court
large enough to attract the best judicial talent?
10. Do you think the Supreme Court is ever justified in reversing its
own decisions, or should it stand by the precedents?
11. What is the meaning of the term obiter dicta as applied to a
judicial opinion?
12. Do you think it is a wise practice for judges who disagree with the
majority of the court to file dissenting opinions?
13. A recent President took occasion to criticize publicly a federal
judge for a decision which he rendered in a "trust" case. Do you think
judges should be criticized for their decisions?
14. Are juries ever made use of in federal courts? If so, when?
15. Why have federal judges been criticized for issuing injunctions?
16. When may an appeal be taken from a state court to a federal court?
17. The Supreme Court has always refused to decide "political"
controversies. What is a "political" as opposed to a "legal"
controversy? Give examples.